[1988] OLRB Rep. August 747
0622-88-R Labourers' International Union of North America, Local 1059, Applicant v. Capital Construction Corporation, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. Gibson and H. Kobryn.
DECISION OF THE BOARD; August 2, 1988
By decision dated June 30, 1988, the Board issued two certificates: one to the applicant on its own behalf and on behalf of all other affiliated bargaining agents of the affiliated bargaining agency thereof (that is, the Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District Council) in respect of all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman, and another to the applicant with respect to all construction labourers in the employ of the respondent in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
By letter dated July 11, 1988, the respondent, in effect, seeks reconsideration of the Board's decision as follows:
I feel that the decision of the Board on June 30, 1988 was made without full familiarity with the facts. One of the employees making application, Cohn Gould, was laid off due to shortage of work on June 8, 1988; having been the most recently hired employee. The second employee making application, Peter Evitts, was dismissed on June 22, 1988 for drinking on the job. We now have only one employee who has not applied for membership in the union.
The Labourers' International Union of North America, Local 1059, does not represent anyone's interest at Capital Construction Corporation. I respectfully request the Board's decision be reviewed and this union be de-certified as the bargaining agent.
- Section 106(1) of the Labour Relations Act provides that:
106.-(l) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
The Board's power to reconsider its decision is a broad one. However, both the Act and the realities of labour relations dictate that the premise from which the Board must begin is that its decisions should be final and conclusive for all purposes. In recognition of the need for finality, the Board will not usually reconsider a decision unless an obvious error has been made; or, the request raises important issues of Board policy; or, the party requesting it proposes to adduce new evidence that it could not, with the exercise of due diligence, have obtained previously, and that new evidence would be virtually conclusive; or, if a party wishes to make representations or objections it had no previous opportunity to make (see Board Practice Note No. 17). The Board has entertained applications for reconsideration alleging that events that occurred subsequent to a Board decision have so altered the situation that an order of the Board is clearly inappropriate (see for example The Journal Publishing Co. of Ottawa Ltd., [1977] OLRB Rep. Sept. 549 and Nov. 748; Culverhouse Foods Ltd., [1978] OLRB Rep. Mar. 219). However, it does not appear that the Board has ever reconsidered a finding of fact or, other than perhaps in Genaire Ltd., 59 CLLC ¶18,140 or Atlantic Packaging Products Ltd., [19801 OLRB Rep. Feb. 158, its disposition in a representation proceeding on the basis of events that occurred subsequent to dates material to the Board's considerations. It is difficult to imagine any situation where it would be appropriate for the Board to reconsider such findings or dispositions, as opposed to remedial orders in representation proceedings on the basis of subsequent events (even in Atlantic Packaging Products Ltd., supra, the Board reconsidered its decision to certify a trade union not because of the build-up in the employer's work force that occurred subsequently, but because the parties knew, on the date of application, that the build-up was planned and imminent and because., had that plan build-up and been brought to the Board's attention, a certificate would not have been issued). The fluid nature of labour relations is such that changes and circumstances are common, particularly in the construction industry. A less stringent approach to reconsideration than the Board has adopted would result in a lack of finality and certainty that would have a serious destabilizing effect on the labour relations of this province. This is particularly true of Board decisions, such as that which the respondent seeks to have the Board reconsider which certify a trade union as the bargaining agent for a group of employees.
The certification process and the manner in which the Board determines the right of an applicant trade union to be certified, in other than the construction industry, is well established and has been described by the Board in a number of previous decisions (see for example, London Soap Company Limited, [1987] OLRB Rep. Feb. 241 at paragraph 12; Famz Foods Limited, [1985] OLRB Rep. June 857 at paragraphs 10 to 14; Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 at paragraphs 15 to 17). Although all applications for certification in the construction industry must be made under section 144 of the Act (see Clarence H. Graham Construction Ltd., [1981] OLRB Rep. Sept. 1195) and the method of ascertaining the list of employees in the bargaining unit for purposes of the count (that is, the number of employees in the bargaining unit for whom the applicant has filed membership evidence) differs, the same general considerations apply.
In applications for certification in the construction industry, a person must be at work, in the bargaining unit for the majority of his/her time, for the respondent employer only on the date the application is made in order to be included on the list of employees for purposes of the count. Accordingly, it is irrelevant that any person so engaged was not at work in a bargaining unit, or employed by the respondent, on any day prior or subsequent to the date of application (see Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220; E & E Seegmiller Ltd., [1987] OLRB Rep. Jan. 41; Smiths Construction Arnprior Limited, [1984] OLRB Rep. Mar. 521).
In our view, the respondent, which originally filed a list of employees but no reply or other representations, has suggested no cogent basis for its request that the Board's reconsider its decision to issue certificates as aforesaid, or offered any reason for the Board to hold a hearing with respect to its request. Accordingly, the respondent's request for reconsideration is denied and the decision dated June 30, 1988 herein is affirmed.